Sleek v. JC Penney Company, 14166

• Decision Date: 13 November 1963
• Docket Number: 14167.,No. 14166,14166
• Citation: 324 F.2d 467
• Parties: Josephine Ann SLEEK, Appellant in No. 14,166, v. J. C. PENNEY COMPANY, Inc., a Delaware Corporation, Appellant in No. 14,167.
• Court: U.S. Court of Appeals — Third Circuit

324 F.2d 467 (1963)

Josephine Ann SLEEK, Appellant in No. 14,166, v. J. C. PENNEY COMPANY, Inc., a Delaware Corporation, Appellant in No. 14,167.

Nos. 14166, 14167.

United States Court of Appeals Third Circuit.

Argued April 23, 1963.

Decided November 13, 1963.

COPYRIGHT MATERIAL OMITTED

James P. McArdle, Pittsburgh, Pa. (Paul F. Laughlin, McArdle, Harrington & McLaughlin, Pittsburgh, Pa., on the brief), for Josephine Ann Sleek.

Bruce R. Martin, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for J. C. Penney Co., Inc.

Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.

BIGGS, Chief Judge.

Jurisdiction in the case at bar is based on diversity of citizenship and, after a jury trial, the suit resulted in a judgment in favor of the plaintiff, Mrs. Josephine Ann Sleek, against the defendant, J. C. Penney Co., Inc., in the amount of $10,000. Both parties have appealed. The plaintiff asserts that the amount of the jury's verdict was reduced because of the errors and the improper actions of the trial judge as set out hereinafter. The latter charge constitutes a most serious accusation. Penney insists that there was not sufficient evidence to support a verdict against it.¹

The complaint alleged that Mrs. Sleek was injured because Penney negligently permitted wrapping cord to gather on the floor of its store and this caused her to trip and fall. The following appears from the evidence offered by the plaintiff in her case in chief. On January 5, 1955, Mrs. Sleek, accompanied by her daughter, Mrs. DeFinis, her daughter-in-law, Mrs. Demor, and Mrs. DeFinis' daughter, Donna Jean Hughes, went to the Penney department store in Monroeville, Allegheny County, Pennsylvania. The purpose of this excursion was to purchase sheets at the Penney January "White Sale." While in the store, Mrs. DeFinis made a purchase, and as Mrs. Sleek was tabulating the sales slip for her, Mrs. Demor called to Mrs. Sleek from a point near a low platform or lowboy, described in the next paragraph. Mrs. Sleek testified that she turned to join her daughter-in-law and her right foot became entangled with something. This threw her off balance and after a futile attempt to regain her equilibrium, she fell heavily. After her fall she discovered wrapping cord on her shoe, which was the same as cord found in the aisle of the store, and was traced back to a spindle on or near a counter or platform.

Three of Penney's employees testified in its defense. All stated that there was a low platform or low-boy, perhaps five feet long, about five inches high and three to four feet broad, close to the spot where the plaintiff fell. One of these witnesses, Walker, testified that he heard a thud and that "Mrs. Sleek had stumbled over this lower platform. I had thought that was what it was. * * * There was nothing else that would have made a thud."

Despite the fact that the plaintiff had proceeded with her case in chief on the theory that her foot had become entangled in the defendant's wrapping cord, nonetheless at the close of the defendant's case the plaintiff sought to introduce a new theory of liability: i. e., that Penney was negligent in making use of the low platform or low-boy in such a position that the plaintiff could fall over it. Her counsel moved to amend her complaint to conform to the evidence as provided by Rule 15(b), Fed.R.Civ.Proc., 28 U.S.C. This motion was refused and the plaintiff claims this constituted prejudicial error.

We cannot agree. Since this is a diversity case, we must look to the law of Pennsylvania to determine Penney's liability. Dill v. Scuka, 279 F.2d 145, 147 (3 Cir. 1960). Under Pennsylvania law the "jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture." Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138, 153 A.2d 477, 479 (1959). Even assuming that Walker's testimony, largely based on sound rather than sight, was sufficient, there was no evidence offered to show that the low-boy was improperly or negligently placed by Penney on the floor of the store. It is clear, therefore, that the court below committed no reversible error in rejecting the proffered amendment. See Stephens v. Reed, 121 F.2d 696, 699 (1941), in which this court said: "The court's refusal of these amendments was * * * not an abuse of discretion. There can be no abuse when what is refused would avail the offeror nothing if allowed."

The next point raised by the plaintiff is that the court below erred in refusing to admit certain expert medical evidence which the plaintiff insists would tend to prove that certain drugs, Flexin and Thoricin, prescribed for her by her doctors because of injuries resulting from her fall gave her hepatitis. According to the offer of testimony made by the plaintiff, it could have been shown that these drugs have been withdrawn from the market as causing this disease. The court refused to receive this evidence on the ground that it did not possess the certainty required by Pennsylvania evidentiary rules. See Wargo v. Pittsburgh Railways Co., 376 Pa. 168, 172-173, 101 A.2d 638, 640 (1954). The plaintiff's argument is based in part on Rule 43(a), Fed.R.Civ.Proc.² She points out also that Section 597, Restatement, Conflict of Laws, states that "the law of the forum determines the admissibility of a particular piece of evidence," that the Supreme Court held in Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 109, 80 S.Ct. 173, 175, 4 L.Ed.2d 142 (1959), a Jones Act case, that "the matter of sufficiency of expert testimony does not turn on the use of a particular form of words by the physicians in giving their testimony," and finally, that this court has applied a seemingly equivalent rule in F. E. L. A. decisions. See Neff v. Pennsylvania R.R. Co., 7 F.R.D. 532, 534 (E.D.Pa.1948), affirmed, 173 F.2d 931 (3 Cir. 1949). She seeks to bolster her position in this, the case at bar, a diversity case, by citing as authority Carlson v. Chisholm-Moore Hoist Corp., 281 F.2d 766, 771-72 (1960), cert. denied, 364 U.S. 883, 81 S.Ct. 172, 5 L.Ed.2d 104 (1960), where the Court of Appeals for the Second Circuit, relying largely on Rule 43(a), allowed expert opinion evidence although the evidentiary rules of New York, in which the federal trial court sat, seemingly would have excluded it. But the offer of proof as to the cause of Mrs. Sleek's hepatitis was in our view insufficient under any rule to make it available in the case at bar. One doctor testified, for example, "to the possibility of indirect possibility" of the plaintiff's hepatitis being caused by the drugs. The strongest testimony on this issue was given by Dr. Maier Tuchler of Phoenix, Arizona, who was called by the plaintiff as an expert in the fields of neurology and psychiatry. He testified that the two drugs, Flexin and Thoricin, were "suspected" of causing hepatitis, but he also stated that there were two kinds of hepatitis, one caused by infection and the other by drug reaction. The most that can be said for Dr. Tuchler's statements in this connection, on which the plaintiff's offer was based, was that she had parenchymal³ hepatitis but, Dr. Tuchler went on to say that "you cannot determine which type of hepatitis is infectious and which is due to drug reaction."

There was of course a possibility that the plaintiff's illness could have been caused by the administration of drugs but even under the most liberal construction of what the witnesses said whether the plaintiff's hepatitis was infectious or caused by drugs was left completely in nubibus. There was no offer to prove that it was not infectious hepatitis, i. e., caused by a non-sterile needle or perhaps by food organisms. In addition, there was no offer of testimony as to what the plaintiff's dosage of either drug had been and the matter was left in the area of speculation. We are still of the view that in a diversity case where the sufficiency of the evidence goes to the maintenance of the substantive right, as here, the law of the state must prevail. Moran v. Pittsburgh-Des Moines Steel Co., 166 F.2d 908, 917 (3 Cir. 1948), cert. denied, 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770 (1948); Waldron v. Aetna Casualty & Surety Co., 141 F.2d 230, 234 (3 Cir. 1944). There was lacking here not only the reasonable medical certainty required by the law of Pennsylvania but the offer of testimony possessed insufficient probative value to permit it to go to the jury even under the most general rule of admissibility. The trial court did not err in rejecting the offer as made.

The plaintiff next insists that the court below erred in failing to enforce its own pretrial rules when it did not require the defendant to file a narrative statement, disclose names of witnesses, and furnish medical reports of examining doctors. Specifically she asserts that the fact that Penney did not file a Pretrial Narrative Statement as required by Rule 5(II), subd. C, par. 3 of the court below⁴ was gravely prejudicial and that she was prejudiced further because her request, made almost at the close of her case, to require the defendant to produce a report or a copy of a report of an examination made by a Dr. Carpenter who had examined the plaintiff prior to trial at the request of Penney's insurance carrier, was not granted. A brief recital of the pertinent facts is necessary.

The record reveals that a pretrial conference had been scheduled in this case for Thursday, January 11, 1962 before Judge Rabe F. Marsh, Jr. In a letter dated December 29, 1961, plaintiff's counsel, Mr. McArdle, had requested Judge Marsh to postpone the pretrial conference and the filing of the required stipulation of facts until a few weeks after he returned to Pittsburgh, he being then about to leave the city. He stated that Penney's counsel, Mr. Martin, had agreed to the postponement and would so stipulate. Probably because of this letter, the apparent stipulation and...